Maryland cross: religious symbol or war memorial? Court will decide

The Peace Cross in Bladensburg, Md., a memorial to soldiers killed in World War I, is at the heart of a lawsuit that claims the 40-foot cross on government property violates the First Amendment. The cross has a cover to protect it from rain damage.

BLADENSBURG, Md. — To some it’s a blatant religious symbol, 40 feet tall, sitting on a median in the center of a busy highway intersection on government-owned land. To others, it is a 91-year-old piece of history, a symbol of honor, service and peace and a landmark to be preserved.

In the coming months, a U.S. appeals court will have to decide whether the monument dedicated to the memory of 49 local men killed in World War I – known as the Peace Cross – is in keeping with the Constitution’s First Amendment and the separation of church and state.

The U.S. Court of Appeals for the Fourth Circuit heard arguments in the case earlier this month, after a district court judge ruled in November 2015 against a lawsuit asking to have the monument removed. The case is one of a growing number of challenges to veterans memorials and monuments because of their religious imagery, giving rise to legal questions about how those symbols should be interpreted in a historical context.

“If the Bladensburg Memorial must come down, then so too must the many veterans memorials across the country which bear religious imagery,” the First Liberty Institute, a religious freedom firm in Plano, Texas, said in an online summary of the case. The group, along with the Jones Day law firm, is providing free defense counsel on behalf of the monument. “This would require tearing down the Argonne Cross in Arlington (National) Cemetery and sandblasting the word “God” from the Tomb of the Unknown Soldier.”

Erected in 1925 with funds raised by families and the now dissolved Snyder-Farmer Post of the American Legion, the Peace Cross was created to memorialize men from Prince George’s County who died in World War I. It was designed and constructed by local stone carver and artisan John Joseph Earley, using his unique method of creating colorful precast concrete aggregate panels. The Legion symbol is emblazoned on the cross, as are the words “courage,” “valor,” “devotion” and “endurance.” A plaque on the bottom lists 49 names and has a quote from President Woodrow Wilson:

“The right is more precious than the peace; we shall fight for the things we have always carried nearest our hearts; to such a task we dedicate ourselves.”

Over nearly a century, the landscape changed and the property on which the cross was built changed hands. Three major roadways converge at the intersection marked by the cross, which sits on a median surrounded by traffic. The land – once the property of the American Legion was transferred to the Maryland-National Capital Park and Planning Commission after the highways grew up, though the nearby American Legion Colmar Manor Post 131 and the town of Bladensburg continue to hold Memorial Day and Veterans Day events at the monument.

While supporters venerate the Peace Cross as a historical tribute to the war fallen, opponents claim it excludes non-Christians from the commemoration.

In 2014, the American Humanist Association, which promotes ethics and the well-being of humanity without religion, filed suit against the park and planning commission to move or modify the monument, arguing that it violated the First Amendment: “Congress shall make no law respecting an establishment of religion.”

“It wasn’t the symbol itself that bothered me,” said Fred Edwords, an area resident and staff member at the AHA, who lent his name to the lawsuit. “It was its placement. That location broadcast loud and clear that maybe a person of my humanist outlook wasn’t welcome or considered equal.”

The American Legion joined with the commission to defend the cross, their lawyers arguing that it was designated as a memorial, harkening back to World War I grave markers in Europe, and that the symbol was not meant to be religious.

“It’s a memorial to commemorate those who have fallen in World War I and it has stood there for 91 years and that’s what we feel it represents,” said retired Sgt. 1st Class Russell Myers Jr., the American Legion Department of Maryland adjutant. “It doesn’t represent the government’s endorsement of religion. It wasn’t created to further Christianity at all.”

The U.S. District Court for the District of Maryland agreed. In November 2015, the court ruled against the lawsuit, finding that while the cross is an inherently religious symbol, it was not intended to promote religion but rather as a war dead memorial. The purpose was secular and the history and context were clear, the court found, and it did not promote or advance a religious position.

In December 2015, AHA filed an appeal.

“You can argue all you want, but the point is, it only honors Christian soldiers – Jews and atheists don’t use the cross,” said AHA attorney Monica Miller, who argued their case at the appeal. “It’s a giant cross in the middle of a median in a very busy intersection. It just presents itself as a giant cross on government property.”

In addition to arguments filed by both sides, several friend-of-the-court briefs were submitted on behalf of preserving the monument, including one from a group of congressman and another from the religious liberty organization The Becket Fund for Religious Liberty.

“What’s next, airbrushing the word ‘God’ out of the Declaration of Independence and the Gettysburg Address?” Eric Rassbach, deputy general counsel for the Becket Fund, said in a written statement.

First Liberty Institute lawyer Roger Byron said the monument passed the legal test for whether something is in keeping with the “Establishment Clause” of the First Amendment – namely, that its purpose, context and history can clearly be understood as secular. He said the cross is clearly marked as a memorial; it sits alone on a median between roadways, and across the street is a park with several other war memorials. The religious content does not negate its secular purpose, and its historical context as a war memorial comes into play in favor of the monument’s constitutionality.

“The court looks at the history, purpose and context of the display,” he said. “And in all three cases, the Bladensburg World War I veterans memorial clearly passes muster.”

For the non-Christians fighting the Peace Cross, demanding its removal isn’t a random effort to make an example to bolster the First Amendment. There needs to be a conversation about the use of Christianity and Christian symbols to the point where people consider them nonreligious elements, said Jason Torpy, who heads the Military Association of Atheists and Freethinkers, which advocates on behalf of nonreligious servicemembers and veterans.

Torpy said there is an institutional Christian bias in the military, and that needs to be acknowledged to ensure that it treats all veterans equally, regardless of religion. He said that in a study conducted by Torpy’s organization in 2012, 20 to 30 percent of the military was non-Christian, yet only 3 percent of the chaplains were.

“People have difficulty distinguishing familiarity from truth,” Torpy said. “It’s just dishonest to look someone in the face and say that a 40-foot cross is not Christian.”

But for residents of Prince George’s County, the Peace Cross is a landmark. “It’s always been there,” said Marjorie Schulenberg, who grew up in the county and now lives in Laurel. Her parents served in World War II and are buried at Arlington.

“No one is saying it has to be everyone’s religion,” she said.

The three-judge panel of the Fourth Circuit appeals court heard arguments Dec. 7. The judges did not indicate when they will make their decision.